1. The question involved in this appeal is whether the suit of the plaintiff is barred by res judicata by the operation of the decree passed in suit No. 136 of 1923.
2. In suit No. 136 of 1923, the plaintiff sued to recover possession of the whole of the property on the ground that she had purchased it in 1907 from one Bhimappa Shiddappa for Rs. 150 and that she was the exclusive owner of the property and that her sister, the defendant had no interest therein. The defence in that case was that the mother was the owner of the property, that the mother Jivubai and the defendant were joint purchasers of survey No. 178 which was exchanged for the land in suit, and that the exchange was effected by the defendant herself and that the plaintiff had no share therein. The learned Subordinate Judge in that case held that the plaintiff's purchase of 1907 was not proved, but granted the plaintiff possession of half the share on the ground that the property belonged to the mother Jivubai, and that the plaintiff was entitled to half the share of the property. That decision was reversed in appeal on the ground that the plaintiff failed on the case made in the plaint, and could not set up any other claim which was inconsistent with it. The present suit is brought by the plaintiff on the ground that the mother Jivubai was the owner of the property, and that the plaintiff and the defendant were her heirs and in 1907 they exchanged the land for the plaint land, and therefore the plaintiff is entitled to recover half the share in the plaint land. The learned Subordinate Judge held that the plaintiff's suit is barred by the principle of res judicata. The lower appellate Court has come to a contrary conclusion.
3. In a case where the plea of constructive res judicata is raised, the question is not in fact heard and finally decided in the previous suit. But under Expl. 4, Section 11, if a ground of attack which ought to have been made in the previous suit has not been so made, then it is deemed that the issues which ought to have been raised was in issue between the parties, and must be considered to have been finally decided against the party who ought to have raised that issue. The question whether in such circumstances the previous decision operates as res judicata is not free from difficulty. In Kameswar Pershad v. Rajkumari Ruttan Koer (1892) 20 Cal. 79 one principle laid down by the Privy Council at p. 85 is as follows:
that it 'might' have been made a ground of attack is clear. That it 'ought' to have been appears to their Lordships to depend upon the particular facts of each case Where matters are so dissimilar that their union might load to confusion, the construction of the word 'ought' Would become important; in this case the matters were the same.
4. It is urged on behalf of the appellant that even though the matters may be inconsistent, yet the plaintiff, in order to succeed, must bring forward all the ground supporting his title, and reliance has been placed on the decision in the case of Guddappa v. Tirkappa (2). It is observed in that case (p. 193):
The test therefore proposed whereby to determine whether it ought to have been matter of attack is this: are the matters so dissimilar that their union might lead to confusion? To ray mind there is in this case but one answer to that question; that absolutely no confusion would have arisen had the plaintiff in the former suit pleaded in the alternative the title ho now sets up.
5. In that case the plaintiffs in the previous suit sued to recover possession of the property as the surviving members of the joint family, and brought the subsequent suit alleging that on the death of the widow of the former owner they became entitled to it as reversioners. It was held that the ground of title by survivorship, though inconsistent with the right as reversioner, could have been conveniently joined in the previous suit so as not to lead to any confusion. There is however another principle laid down by the decided cases, viz., that where the introduction of a ground of attack in the previous suit would have been incongruous to the subject matter of the previous suit, it could not be said that the matter ought to have been set up as a ground of attack in the previous suit. In Dola Khetaji v. Balya Kanoo A.I.R. 1922 Bom. 29 it was held that the suit was not barred as the two suits were mutually inconsistent and if the plaintiff failed in proving the mortgage, he still had a number of years within which he could have sued to get back the property on payment of the consideration mentioned in the Satekhat. The principle underlying the decision is that if the ground of attack in the second suit was so incongruous with the ground of attack in the previous suit that they could not be joined together conveniently as being mutually destructive of each other, the constructive principle of res judicata would not apply. I may refer in this connexion to the remarks in the case of Konerrav v. Gurrav  5 Bom. 589. In Kanhaiya Lal v. Astiraf Khan A.I.R. 1924 All. 355 it was held that it is not obligatory on a party seeking tom present case she heir of her mother the property from of herself and the previous suit protect certain property as wakf property from an impending sale to assert in the same suit any personal right thereto which he may afterwards find himself entitled in case the property in question is not found to be wakf property. It is immaterial whether he could have joined in the previous suit an alternative claim for the protection of his personal share. There was no obligation to join the two claims, and his omission to set up the personal title in the previous suit would not bar the decision of that matter in a subsequent suit.
6. In Masilamania v. Thiruvengadam (1908) 31 Mad. 385 it was held that it would not be practicable to join in one suit the different grounds only when the evidence in support of the one ground would be destructive of the other. The plaintiff in the previous suit sued on the ground that she was the exclusive owner of the property by purchase from Bhimappa Shiddappa. In the bases her title as the and an exchange of Bhimappa in favour two daughters. In the plaintiff sued by right of purchase treating the defendant as a trespasser and in the present suit plaintiff sues as a cosharer for the moiety of the property treating the defendant as a cosharer. If the plaintiff had made the contention based in the present suit as an alternative ground of attack in the previous suit, the evidence which would have been necessary to be led in support of her present contention would have been destructive of the contention in the previous case that she became the exclusive owner of the property by purchase from Bhimappa. In fact when the Subordinate Judge decided in favour of the plaintiff and allowed her half the share on the ground that she was the heir of her mother and entitled to recover possession of half the property, the decision was reversed on appeal on the ground that she was not entitled to make a case inconsistent with the, case made in the plaint. It would there fore be clear that the plaintiff in the previous suit claimed an exclusive title to the whole of the property by her own purchase from Bhimappa. She now relies upon her title to a half share in the land as the heir of her mother. The ground of the decision in Guddappa v. Trikappa  25 Bom. 189, that the plaintiff must join all the grounds of attack in the previous suit, is subject to this limitation that the grounds of attack must not be incongruous, and that the evidence to support one of the grounds ought not to be destructive of the other alternative ground which could have been made in the previous suit. I think that in the present case, if the contention which is now raised by the plaintiff in the second suit had been made an alternative ground of attack in the previous suit, the evidence that would have been led to support the present contention would have been destructive of her title based on the contention raised in the previous suit. In the cases which have been cited on behalf of the appellant it was hold that the joinder of the inconsistent cases would not be inconvenient, and the facts of those cases show that the alternative claim was not incongruous or destructive of the case which was made in the previous suit. In Muhammad Rowther v. Abdul Rehman Rowther A.I.R. 1923 Mad. 257 the joining together of the two claims, one under the purchase and other as heir, would have led to no confusion or embarrassment, for the defendant was treated as a trespasser in both the suits, but in the present case the defendant was treated as a trespasser in the previous suit and is treated in the second suit as a cosharer and the suit is brought for the moiety of the property, and the title based on purchase in the previous suit was destructive of the title of the mother from whom the plaintiff claimed a moiety as heir in the second suit. I think there fore that the view taken by the lower Court, that the present suit is not barred by res judicata by virtue of the decision in suit No. 136 of 1923, is correct, and this appeal must be dismissed with costs.
7. I agree. It is not necessary for me to add anything to the judgment of my learned brother except that in this case the plaintiff in the former suit was suing to recover the whole of the property on the strength of an alleged purchase made by her, whereas now in the present suit she is suing for only half the property as the heir of her mother, the other half going to her sister. There are a number of rulings on the question of Expl. 4, Section 11 of the Code, constructive res judicata, but as the Privy Council has laid down each case must be considered on its own facts. A very similar case arose before me about three weeks ago, but that case had to be decided on its own facts, in which I came to a contrary conclusion: Anant Subrao v. Mahabaleshwar Gurunath Bhat A.I.R. 1931 Bom. 114. In the present case there can be no doubt that it will be impossible for the plaintiff to come to Court and say that she was the sole owner of the whole property by virtue of the purchase (I omit the question of exchange which is quite immaterial) and then set up an alternative case that the property was purchased by her mother and that she was entitled to have a share in it along with her sister. These two alternative cases would be mutually destructive, and the evidence in support of them would be contradictory. In these circumstances I think the present case is governed by those cases referred to in which the case is held not to be barred by constructive res judicata where the allegations are so inconsistent as to be destructive of each other, and I therefore agree with the view of the lower appellate Court.